Public Law

The Inner House of the Court of Session, overturning the ruling of a lower court, will ask the Court of Justice of the European Union (CJEU) to give its opinion on whether or not the United Kingdom can unilaterally revoke the “Article 50” notice of the UK’s departure from the EU.

What was this case about?

Since the UK Government served notice of the UK’s departure from the EU on the European Council on 29 March 2017, there has been some debate as to what the UK’s options now are: could the UK unilaterally withdraw this notice, is it now effectively locked in to Brexit, or are there other possibilities?

To resolve the question of whether unilateral withdrawal of the Article 50 notice is possible, a group of Scottish politicians, including MSPs, MPs and MEPs, and representing the SNP, Labour and the Liberal Democrats, asked the Scottish Court of Session to refer this question to the CJEU for a definitive ruling.

The case was brought as a judicial review – a challenge to government action – on the premise that the UK Government’s position that the notice is irrevocable is not legally correct.

Lord Boyd, the judge at first instance, considered that there were three questions he had to answer when considering whether to refer the challengers’ question to the CJEU:

  1. Was the question academic or hypothetical?
  2. Would asking the question breach Parliamentary Privilege?
  3. Was it likely that the CJEU would accept the reference from the Court of Session?

On the first question – whether the challengers’ question was academic or hypothetical – Lord Boyd considered that it was. The Government did not have a policy of revoking the Article 50 notice, nor had Parliament voted to revoke it, and therefore the question was not one that the parties needed the courts to resolve. Previous cases have made it clear that the courts do not exist to give advisory opinions on the law but to resolve genuine disputes. For the same reason he considered that the CJEU would not accept the reference if it was made.

The Inner House, with the benefit of the EU Withdrawal Act now in place, considered that the question was no longer hypothetical or academic. Parliament would have to vote on the options available to it at the end of the negotiations with the EU, and will require to know therefore what those options are. Whether the CJEU would accept it was up to that court, but the Inner House judges considered that it would. The Scottish courts so rarely refer questions to the CJEU that it can safely assume that when they do, they are satisfied that the question is not an academic one.

The Inner House also disagreed with the Lord Ordinary on the second question – it was no interference with parliamentary process to clarify the existing law on any matter. The court was not, in setting out what the law was, telling Parliament how to exercise its role, merely clarifying its legal options.

What happens next?

The parties have 14 days from the date of the judgment to submit comments on the drafting of the question to be sent to the CJEU.

Some news outlets have appeared to suggest that the Court of Session’s decision to send the question to the CJEU could be appealed to the UK Supreme Court. While the UK Government could ask the Inner House for permission to appeal, if that permission is refused (which would seem likely given the time pressure and the terms of the Inner House’s decision) neither UK nor EU law would allow the Government to then seek permission from or otherwise appeal to the Supreme Court itself. It is not yet clear whether the Government will ask the Inner House for permission to appeal, but one way or the other it does seem likely that the matter will now go to the CJEU.

The reference, under the Treaty on the Functioning of the European Union, has been expedited given the looming Brexit deadline of 29 March 2019. It will still be for the CJEU to decide for itself whether to accept the reference as one that is not hypothetical or academic, but if it does we can expect a decision from the EU’s highest court as to whether the UK could cancel Brexit, and on what terms. How such a ruling would affect ongoing UK-EU negotiations, or the domestic political position, remains to be seen.

Jamie Dunne

Jamie Dunne

Jamie has a broad range of experience in government law, regulatory and competition matters, including advising public bodies, regulators and regulated entities on their powers and duties, procurement matters (both contentious and non-contentious) and information law.
Jamie Dunne